Emil Jutrowski v. Township of Riverdale

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________

No. 17-2594
_______________

EMIL JUTROWSKI,
Appellant

v.

TOWNSHIP OF RIVERDALE; STATE OF NEW JERSEY,
by and through the New Jersey State Police; JEFFREY
HEIMBACH, New Jersey State Police Trooper, individually
and in his representative capacity as a State Police Officer;
JAMES FRANCHINO, individually and in his representative
capacity as a new Jersey State Police Officer; TRAVIS
ROEMMELE, individually and in his representative capacity
as a Riverdale Police Officer; CHRISTOPHER BIRO,
individually and in his representative capacity as a Riverdale
Police Officer; JOHN DOES (1-20); COL. RICK FUENTES,
in his representative capacity as a commanding and Chief
Executive Officer of the New Jersey State Police; CHIEF
THOMAS SOULES, in his representative capacity as Chief
of the Riverdale Police Department,
_______________
 On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. Civil Action No. 2:13-cv-07351)
Honorable John M. Vazquez, U.S. District Judge
_______________

Argued: March 12, 2018

Before: JORDAN, KRAUSE, and
GREENBERG, Circuit Judges

(Opinion Filed: September 12, 2018)

Robert J. Degroot, Esq. [Argued]
56 Park Place
Newark, NJ 07102

Counsel for Plaintiff-Appellant Emil Jutrowski

Anthony P. Seijas, Esq. [Argued]
Cleary Giacobbe Alfieri & Jacobs
169 Ramapo Valley Road
Upper Level 105
Oakland, NJ 07436

Counsel for Defendant-Appellees Township of
Riverdale, Travis Roemmele, Christopher Biro,
and Chief Thomas Soules

2
Gurbir S. Grewal, Attorney General of New Jersey
Matthew J. Lynch, Esq. [Argued]
Robert P. Preuss, Esq.
Office of the Attorney General of New Jersey
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625

Counsel for Defendant-Appellees State of New
Jersey, Jeffrey Heimbach, James Franchino,
and Col. Rick Fuentes

3
 _______________

OPINION OF THE COURT
_______________

KRAUSE, Circuit Judge.

This case arises from an undisputed constitutional
violation: an act of excessive force committed during the arrest
of Appellant Emil Jutrowski in which he was kicked in the
face, breaking his eye socket. Appellees—consisting of two
Riverdale, New Jersey Police Officers and two New Jersey
State Troopers involved in the arrest (the “Individual
Defendants”), and their respective employers, the Township of
Riverdale and the State of New Jersey (collectively, the
“Defendants”)—do not dispute that one of the officers kicked
Jutrowski. But each of the Individual Defendants asserts he
neither inflicted the blow himself nor saw anyone else do so,
and Jutrowski, whose face was pinned to the pavement when
the excessive force occurred, is unable to identify his assailant.
He therefore brought excessive force claims against all
Defendants and conspiracy claims against the four Individual
Defendants under 42 U.S.C. § 1983. The District Court,
however, relying on our precedent that a defendant in a civil
rights action must have “personal involvement” in the alleged
wrongs, Rode v. Dellarciprete, 845 F.2d 1195, 1207–08 (3d
Cir. 1988), determined that Jutrowski’s inability to identify his
attacker was fatal to his claims and granted summary judgment
in Defendants’ favor.

We are now called upon to outline the contours of this
“personal involvement” requirement in § 1983 cases and to
consider its application when a plaintiff who indisputably

4
suffered a constitutional injury at the hands of one officer
comes up against to the proverbial “blue wall of silence.”
Despite the unfortunate situation created for plaintiffs like
Jutrowski who are unable to identify their attackers through no
fault of their own, we hold that a plaintiff alleging that one or
more officers engaged in unconstitutional conduct must
establish the “personal involvement” of each named defendant
to survive summary judgment and take that defendant to trial.
Nonetheless, where a plaintiff adduces sufficient evidence of
an after-the-fact conspiracy to cover up misconduct, even of an
unidentified officer, he may be able to state a claim under
§ 1983 for the violation of a different constitutional right: the
due process right of access to the courts. Such is the case here.
Accordingly, we will affirm the District Court as to Jutrowski’s
excessive force claim but will reverse and remand as to his
conspiracy claim.

I. Background

A. Factual Background1

On June 23, 2010, Emil Jutrowski, after drinking
several vodka sodas at a bar in East Hanover, NJ, crashed his
sport utility vehicle along the shoulder of the highway. Other
than a small cut above his right eye, Jutrowski suffered no
injuries from the accident. Because his car was pinned up

1
The factual summary below draws from record
evidence and because the District Court granted summary
judgment in the defendants’ favor, we view the facts in the light
most favorable to Jutrowski. See, e.g., Pellegrino v. U.S.
Transp. Sec. Admin, No. 15-3047, 2018 WL 3371699, at *2 n.2
(3d Cir. 2018).

5
against the left guardrail, however, he could not exit from the
driver’s side door and was still attempting to “pull away” when
police arrived. App. 285. The first two officers to arrive on the
scene were Officer Travis Roemmele and Officer Christopher
Biro of the Riverdale, New Jersey Police Department (the
“Riverdale Defendants”). Moments later, three State Troopers
arrived, including Appellees Jeffrey Heimbach and James
Franchino (the “State Trooper Defendants”).

The officers quickly deduced that Jutrowski was heavily
intoxicated. Heimbach, who first approached Jutrowski,
immediately detected “an overwhelming odor of an alcoholic
beverage emanating from the interior of [the] vehicle,” and
asked Jutrowski to produce his license and registration.
App. 285. Instead, Jutrowski attempted to light a cigarette and
proceeded to rub liquid hand sanitizer on his face.2 As the smell
of alcohol became “stronger,” Heimbach determined that “it
was emanating directly from [Jutrowski’s] breath.” App. 285.
He also observed that Jutrowski’s eyes were bloodshot and his
pupils extremely dilated, and that, although Jutrowski was still
seated in his vehicle, he was disoriented and moving slowly.
Id.3

2
According to the officers, Jutrowski took “liquid hand
sanitizer and rubbed it all over his face and head and attempted
to swallow s[o]me.” App. 285. Jutrowski testified that he was
merely trying to apply hand sanitizer to the gash over his eye.
3
Under the circumstances, Heimbach normally would
have performed a field sobriety test, but he declined to do so
on account of Jutrowski’s injuries.

6
 It was also apparent that Jutrowski needed medical
attention. Heimbach noticed the cut above his right eye, and
Jutrowski told Heimbach that he was injured, that he had a
heart condition, and that he wanted to go to the hospital. Soon
after, emergency medical personnel arrived and administered
first aid while Jutrowski remained seated in his SUV. At the
point Jutrowski verbally refused further medical treatment but
also refused to sign a written waiver of further treatment,
Heimbach asked Jutrowski to exit his vehicle. Jutrowski
initially refused but eventually, because the driver’s side door
was inoperable, he climbed over the seat and exited the
passenger door without assistance. The officers acquiesced to
Jutrowski’s request not to be handcuffed on account of his
heart condition, and Troopers Heimbach and Franchino began
escorting him towards the ambulance on the other side of the
highway. Jutrowski, however, was unsteady on his feet and
wobbled, so Trooper Franchino, concerned about “the roadway
conditions and the proximity to traffic,” reached out for
Jutrowski’s right wrist to steady him.4 App. 281. In reaction,
Jutrowski “pulled his hand away in an upward fashion,
subsequently striking [Franchino] in the forehead with his
forearm,” App. 281, and Franchino, in turn, promptly executed
a “front leg sweep” maneuver that took Jutrowski to the
ground, App. 281, 424. Jutrowski fell “straight ahead,”
App. 425, with “some force,” App. 426, and “just kind of face-
planted, just like a tower falling over,” App. 336.

4
Jutrowski testified he was unsteady because he was
struck in the crotch by the stick shift when he climbed out of
the car and was therefore in severe pain, but Trooper Franchino
testified that Jutrowski was “stumbling and kind of staggering
. . . walking closer to the lane of traffic.” App. 435.

7
 Lying on the ground on his stomach, Jutrowski’s face
was turned to his right, with his left cheek on the pavement.
With Troopers Franchino and Heimbach on Jutrowski’s right
side and a third trooper on his left, the officers attempted to
handcuff him—a difficult task because Jutrowski’s hands were
tucked underneath him and he was a “very strong, very big
man,” allegedly weighing over 300 pounds at the time.
App. 375, 427, 462. As Franchino used his baton to pry
Jutrowski’s arms from underneath him, Riverdale Officers
Biro and Roemmele ran over to assist. Biro knelt down at
Jutrowski’s feet to hold his legs, and Roemmele “assisted by
holding [Jutrowski’s] legs while the officers were finally able
to remove [his] hands from under his body.” App. 288.
Heimbach put his knee in the small of Jutrowski’s back to
subdue him and with Jutrowski still lying face down,
Heimbach began to search him. Franchino was positioned near
Jutrowski’s shoulders, and was thus “closest to his head.” App.
438.

At some point in the midst of this scuffle, one of the
officers kicked Jutrowski hard on the right side of his face,5

5
On appeal, the State Trooper Defendants concede that
Jutrowski was kicked, see State Trooper Br. 5. While the
Riverdale Defendants do not make this concession as
explicitly, they “d[id] not contest that Plaintiff was kicked”
before the District Court, App. 24, nor do they on appeal, see
Riverdale Br. 12.

8
hard enough to inflict a “blow out fracture,” that is, a broken
nose and broken eye socket, requiring surgery. App. 262–63.6

After the kick, the officers turned Jutrowski over on his
back and Trooper Heimbach continued searching him. As
Heimbach was patting him down, however, Jutrowski
“kick[ed] his left leg up striking . . . Trooper [Heimbach] in the
face with his left foot.” App. 288. At that point, Jutrowski was
handcuffed and taken to the hospital. He ultimately pleaded
guilty to driving under the influence.

B. Procedural History

Because he was unable to identify which of the officers
in his immediate vicinity was the one that kicked him,
Jutrowski filed suit against Officers Biro and Roemmele and
Troopers Franchino and Heimbach, along with the Township
of Riverdale and State of New Jersey (collectively, the
“Defendants”).7 His complaint, as relevant here, included in

6
A medical expert report indicates that it is unlikely
Jutrowski’s injury was the “result merely from a fall face first,”
but instead that it “would take either a kick or punch of
significant force to create the type” of injuries he suffered.
App. 262–62. To this day, Jutrowski’s injury causes him pain,
and he suffers from “frequent headaches, vertigo, dizziness,
vision problems, sinusitis, difficult concentrating, [and]
discharge from his nose . . . .” Appellant’s Br. 7.
7
The operative complaint here was originally filed in
state court and was removed by Defendants to the District
Court. Emil Jutrowski v. Township of Riverdale, et al., No. 13-
7351, 2017 WL 1395484, at *3 (D.N.J. Apr. 17, 2017).

9
Count I a claim for the use of excessive force, in violation of
the Fourth Amendment and 42 U.S.C. § 1983, and, in Counts
V and VI, claims of conspiracy, in violation of § 1983 and New
Jersey law, respectively, to violate federal and state civil rights
by using excessive force, by filing false and misleading police
reports, and by giving misleading grand jury testimony.8

After Defendants unsuccessfully moved for dismissal,
the case proceeded to discovery, where it was established that
Biro, Roemmele, Franchino, and Heimbach were each in
Jutrowski’s immediate presence when he was kicked. But
Jutrowski was not able in the course of the discovery to identify
which of these law enforcement officers inflicted the blow, and
none of the officers admitted to being either the perpetrator or
a witness. Even Heimbach—who testified that he had his knee
in Jutrowski’s back between his shoulder blades, that his “sole

8
All told, Jutrowski’s complaint included seven counts:
(I) a § 1983 claim for excessive force (against the Individual
Defendants); (II) a § 1983 claim for failure to properly train,
supervise and control officers (against the police departments);
(III) a state law tort claim for excessive force, assault and
battery (against all Defendants); (IV) a state law tort claim for
failure to properly train, supervise and control officers (against
the police departments); (V) an alleged conspiracy to violate
federal civil rights (against the Individual Defendants); (VI) an
alleged conspiracy to violate state civil rights (against the
Individual Defendants); and (VII) a claim for assault and
battery (against the Individual Defendants). Counts II, III, IV,
and VII are not at issue as Jutrowski does not challenge the
District Court’s entry of summary judgment on those counts on
appeal. Jutrowski, 2017 WL 1395474, at *6–7.

10
focus” for “the entire time” was on Jutrowski’s head, and that
“if anything . . . struck [Jutrowski] in the face, he would
know”—allegedly saw nothing. App. 344. Likewise, Trooper
Franchino testified that he was the officer “closest to
[Jutrowski’s] head” and was “more than six inches [but] less
than three feet” away when Jutrowski was taken to the ground,
but he too saw nothing. App. 438.

Nor did any of the dashboard cameras (“dashcams”) on
the officers’ vehicles capture the incident. Officer Biro’s car
was parked closest to Jutrowski’s, and his dashcam presumably
would have had the best view of Jutrowski being escorted from
his car across the highway—except that it allegedly did not
record. According to Biro’s testimony, he did not manually
switch on the camera because he believed he was pulling over
to investigate a traffic accident, not to effectuate a vehicle stop.
Emil Jutrowski v. Township of Riverdale, et al., No. 13-7351,
2017 WL 1395484, at *1 (D.N.J. Apr. 17, 2017). Biro also
indicated that the camera should record automatically when the
emergency lights are activated, as they were here, but his
testimony was ambiguous as to whether that was true at the
time of the incident or was a more recent development, and
Jutrowski’s counsel did not seek clarification. For their part,
the State Troopers’ dashcams were activated but “did not
capture any of the critical alleged events” due to their poor
vantage points. Id.

In the absence of evidence identifying the perpetrator,
the District Court granted summary judgment on all counts for
all Defendants. Id. As for the use of excessive force, although
the Defendants “d[id] not contest that Plaintiff was kicked,” the
District Court reasoned that because Jutrowski could not
“identify which Defendant kicked him,” he was essentially

11
asking “the Court to guess which individual Officer Defendant
committed the alleged wrong.” Id. at *4. In its thorough and
thoughtful opinions granting summary judgment and denying
reconsideration, the District Court relied on this Court’s
precedents to conclude that absent an “evidentiary basis on
which to hold” any individual defendant liable, Defendants
were all entitled to judgment as a matter of law. Id. The District
Court also rejected Jutrowski’s request to fill the evidentiary
void with an adverse spoliation inference from the failure to
produce Officer Biro’s dashcam video because Jutrowski had
not made “a request for inspection pursuant to Federal Rule of
Civil Procedure 34(a)” or taken other steps to obtain evidence
of the video, and thus he failed “to provide sufficient evidence
demonstrating that the video actually existed.” Id. at *5.

As for the federal and state civil conspiracy counts, the
District Court found “no facts suggesting that [Individual]
Defendants spoke to each other concerning the alleged kick
before the incident occurred” and that it could not infer any
“after-the-fact” conspiracy because Jutrowski had not
identified specific facts to support the contention “that the
officers from Riverdale and the State Police colluded before
writing their reports or testifying before the grand jury.” Id. at
*8. It therefore granted summary judgment on these counts,
both to the extent they asserted a conspiracy to use excessive
force and to the extent they asserted a conspiracy to violate
Jutrowski’s rights afterwards.

Jutrowski now appeals, arguing that the District Court
erred in granting summary judgment on his claims of excessive
force and civil conspiracy.

12
II. Jurisdiction and Standard of Review9

We review the District Court’s grant of summary
judgment de novo. Faush v. Tuesday Morning, Inc., 808 F.3d
208, 215 (3d Cir. 2015). To warrant summary judgment, the
moving party must establish “that there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law,” Fed. R. Civ. P. 56(a), and all facts should
be viewed “in the light most favorable to the non-moving
party,” with “all reasonable inferences [drawn] in that party’s
favor,” Scheidemantle v. Slippery Rock Univ. State Sys. of
Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006). For its part,
“[t]he non-moving party must oppose the motion and, in doing
so, may not rest upon the mere allegations or denials of his
pleadings” but, instead, “must set forth specific facts showing
that there is a genuine issue for trial. Bare assertions,
conclusory allegations, or suspicions will not suffice.” D.E. v.
Central Dauphin School Dist., 765 F.3d 260, 268–69 (3d Cir.
2014) (citations omitted).

A factual dispute is genuine “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986), but “[c]onversely, where a non-moving party fails
sufficiently to establish the existence of an essential element of
its case on which it bears the burden of proof at trial, there is
not a genuine dispute with respect to a material fact and thus
the moving party is entitled to judgment as a matter of law.”

9
The District Court had jurisdiction under 28 U.S.C.
§ 1331; we have jurisdiction under 28 U.S.C. § 1291.

13
Goldenstein v. Repossessors Inc., 815 F.3d 142, 146 (citations
omitted).

We review the denial of an adverse spoliation inference
for abuse of discretion. In re Hechinger Inv. Co. of Del., 489
F. 3d 568, 574 (3d Cir. 2007). A district court abuses its
discretion if its decision not to draw the inference rests upon “a
clearly erroneous finding of fact, an errant conclusion of law
or an improper application of law to fact.” Meditz v. City of
Newark, 658 F.3d 364, 367 n.1 (3d Cir. 2011) (citations
omitted).

III. Discussion

On appeal, Jutrowski argues that the District Court erred
by granting summary judgment on his excessive force claim
against all Defendants because he set forth specific facts
showing a genuine issue for trial in two ways: by establishing
that excessive force was used and that the Individual
Defendants were all in close proximity, and by adducing
sufficient evidence (the absence of a dashcam video from
Officer Biro) to warrant an adverse inference against the
Defendants. He also claims error in the grant of summary
judgment on his claims against the Individual Defendants for
conspiracy to violate his federal and state civil rights. We
address these arguments in turn.

A. The Excessive Force Claim

As Jutrowski would have it, so long as a plaintiff can
show that some officer used excessive force, he may haul
before a jury all officers who were “in the immediate vicinity
of where excessive force occurred” without any proof of their
personal involvement. Appellant’s Br. 13. That is simply not

14
the law. Instead, the tenet that a defendant’s § 1983 liability
must be predicated on his direct and personal involvement in
the alleged violation has deep historical roots in tort law
principles, is manifest in our excessive force jurisprudence,
and is reinforced by persuasive authority from our Sister
Circuits.

We begin with principles of tort liability, which
necessarily inform our interpretation of § 1983 as a statute
“sounding in tort.” Howell v. Cataldi, 464 F.2d 272, 278 n.10
(3d Cir. 1972); see Carey v. Piphus, 435 U.S. 247, 253 (1978)
(describing § 1983 as a “species of tort liability”). As the
Supreme Court has long recognized, a fundamental principle is
that a tortfeasor’s “liability . . . will only result from his own
neglect . . . .” Dunlop v. Munroe, 11 U.S. 242, 269 (1812). That
is because “[o]ur system of private liability for the
consequences of a man’s own acts . . . started from the notion
of actual intent and actual personal culpability.” Oliver
Wendell Holmes, Jr., The Common Law 4 (Boston, Little,
Brown, & Co. 1881). And, as a result, “[a]n essential element
of [a] plaintiff’s cause of action for negligence, or for that
matter for any other tort, is that there be some reasonable
connection between the act or omission of the defendant and
the damage which the plaintiff has suffered.” W. Page Keeton
et al., Prosser and Keeton on Torts 263 (5th ed., 1984); see
also Restatement (Second) of Torts § 430 (1965).

In the § 1983 context, these principles have led the
Supreme Court to require a “showing of direct responsibility”
by the named defendant and to eschew any “theory of liability”
in which defendants played “no affirmative part in depriving
any[one] . . . of any constitutional rights,” Rizzo v. Goode, 423
U.S. 362, 376–77 (1976)—including theories of vicarious or

15
respondeat superior liability, see Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009); see also Merklin v. United States, 788 F.2d
172, 175 (3d Cir. 1986). Instead, “[b]ecause vicarious liability
is inapplicable to . . . § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official’s
own individual actions, has violated the Constitution.” Iqbal,
556 U.S. at 676 (emphasis added). “Each Government official,
his or her title notwithstanding, is only liable for his or her own
misconduct.” Id. at 677 (emphasis added). And, a fortiori, if
entities and supervisors may not be vicariously liable under
§ 1983 for the constitutional violation of a given individual,
neither may that individual’s cohorts who happen to be in the
immediate vicinity. See Anela v. City of Wildwood, 790 F.2d
1063, 1067–68 (3d Cir. 1986) (observing that defendants may
“not be held liable under section 1983 merely because they
were members of a group of which some other members were
guilty of abuses” (citing Rizzo, 423 U.S. at 370–71)).

We have imported these precepts into the excessive
force context in a trilogy of cases that squarely foreclose
Jutrowski’s argument today. In Howell, 464 F.2d 272, where
the plaintiff alleged that a single police officer exerted
excessive force in arresting him and sued two of the six officers
at the scene, alleging that one was the perpetrator, we affirmed
a directed verdict for the defendants because “[i]nsofar as the
two defendants are concerned, one of them is free of liability.”
Id. at 283. “At best,” we explained, “there was proof of
wrongful conduct of one, identified only as one of two possible
actors, without an explicit identification as to which of the
two,” and thus, “without more,” there was no way to know
which of them should be held to answer for the violation. Id. at
283.

16
 In Sharrar v. Felsing, 128 F.3d 810 (3d Cir. 1997),
where the plaintiff alleged that an officer who handcuffed him
had dislocated his shoulder but could not identify which, out of
the 20 officers on the scene, was the perpetrator, we likewise
concluded that there was “no evidentiary basis on which to
hold the[] defendants liable” and affirmed the order of
summary judgment in their favor on that basis. Id. at 821.

In contrast, in Smith v. Mensinger, 293 F.3d 641 (3d Cir.
2002), we reversed the grant of summary judgment on an
Eighth Amendment claim where, although the plaintiff-inmate
conceded he could not see all five of the defendant-correctional
officers during his alleged beating, he testified that “all of them
. . . were pushing my head, right, into the cabinets . . . and
walls,” and “the full force of all the guards [was] behind me .
. . . I said all of them.” Id. at 650 (emphasis omitted). In that
circumstance, we explained, the “fact that Smith . . .
acknowledged that he could not see those defendants during
the beating neither negate[d] their involvement nor their
liability as a matter of law.”10 Id. Thus, Smith ultimately
involved nothing more than a dispute about “[t]he extent of
each officer’s participation,” which “is . . . a classic factual

10
Jutrowski focuses on other language in Smith—
specifically, our observation that “it is undisputed that all of
the named officers were in the vicinity at some point when
Smith alleges he was beaten,” id. at 651—to argue that mere
presence creates “a sufficient issue of material fact to deny . . .
summary judgment,” Appellant’s Br. 18, but in context, this
merely indicated there was objective corroboration for the
plaintiff’s testimony that “all of them” were involved, Smith,
293 F.3d at 650.

17
dispute to be resolved by the fact finder,” id. (emphasis added),
while Howell and Sharrar involved a dispute about the
possibility of each officer’s participation, which we held is
insufficient, “without more,” Howell, 464 F.2d at 282; see
Sharrar, 128 F.3d at 821, to reach a jury and entitles defendants
to judgment as a matter of law.

The line we drew in these cases is consistent with the
approach of other Courts of Appeals. Indeed, just last year, our
colleagues on the Seventh Circuit wrestled with the “potential
tension” between the individual-responsibility requirement of
§ 1983 and “factual scenarios . . . [where] [i]t may be
problematic to require plaintiffs to specifically identify which
officers” committed the constitutional violation. Colbert v.
City of Chicago, 851 F.3d 649, 657–58 (7th Cir. 2017), cert.
denied sub nom. Colbert v. City of Chicago, Ill., 138 S. Ct. 657
(2018). In that case, the plaintiff sued four of the ten officers
who searched his bedroom, causing property damage, though
he “admitted that he was unable to identify which of the ten
searching officers had caused the alleged property damage
because he was not allowed in the rooms while the officers
conducted their search.” Id. at 657. Despite the “acceptable
reasons” for the officers to clear the search area which risked
“effectively immunizing officers from property-damage
claims by preventing a plaintiff from observing the person
responsible for the damage,” the court held that the plaintiff
was “unable to satisfy § 1983’s personal-responsibility
requirement at summary judgment.” Id. at 657–68. At the same
time, it observed that plaintiffs in this situation might have
recourse “by including in their complaint allegations of
misconduct that are unaffected at summary judgment by the
inability to observe the search,” such as “a ‘conspiracy of
silence among the officers’ in which defendants refuse to

18
disclose which of their number has injured the plaintiff.” Id.
(citations omitted).

Other Courts of Appeals likewise have held that
personal involvement of each defendant is a prerequisite to
liability in § 1983 cases. See, e.g., Burley v. Gagacki, 729 F.3d
610, 619 (6th Cir. 2013) (“To establish liability against an
individual defendant acting under color of state law, a plaintiff
must show that the defendant was ‘personally involved’ in the
use of excessive force.”); Dodds v. Richardson, 614 F.3d 1185,
1195 (10th Cir. 2010) (“[I]ndividual liability under § 1983
must be based on personal involvement in the alleged
constitutional violation.”) (citations omitted); see also Jones v.
Williams, 297 F.3d 930, 935 (9th Cir. 2002) (“[A] plaintiff
could not hold an officer liable because of his membership in
a group without a showing of individual participation in the
unlawful conduct.”).

The authorities on which we rely—tort law principles
informing § 1983 liability, our own precedent, and the wisdom
of our Sister Circuits—are thus unanimous that, in the face of
motion for summary judgment, a § 1983 plaintiff must produce
evidence supporting each individual defendant’s personal
involvement in the alleged violation to bring that defendant to
trial. But Jutrowski has not done so: As he concedes, after
significant discovery, he has narrowed the potential universe
of actors to those that were in his immediate vicinity, but he
filed suit against only four of the five of them and still cannot
“identify the actor that kicked him.” Appellant’s Br. 12. Put
another way, he admittedly seeks to proceed to trial against at
least three defendants who are “free of liability,” Howell, 464
F.2d at 283, without any “ascertainment of [which] individual
charged was the perpetrator of the constitutional deprivation,”

19
id. at 282. As the foregoing discussion teaches, that is not a
sufficient basis to survive summary judgment.

Nor is that deficiency remedied by the potential adverse
inference Jutrowski contends should be drawn from Officer
Biro’s failure to produce his dashcam video. At summary
judgment, “the trier of fact generally may receive the fact of . .
. nonproduction or destruction [of relevant materials] as
evidence that the party that has prevented production did so out
of the well-founded fear that the contents would harm him,”
see Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326,
334 (3d Cir. 1995). But a spoliation inference requires, among
other things, “actual suppression or withholding of evidence,”
Bull v. United Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir.
2012), and here, the District Court found, it would have to
“assume[] there was a recording of the incident” because
Jutrowski “fail[ed] to provide sufficient evidence
demonstrating that the video actually existed.” Jutrowski, 2017
WL 1395474, at *5.

That evidence is indeed starkly absent. On appeal, as at
summary judgment, Jutrowski posits the existence of an
automatic recording based entirely on Biro’s statement at his
deposition that the recording device “activates with [the
emergency] lights.” App. 396. This statement, however, was in
the present tense, while moments later, Biro made cryptic
reference to events “back then” and a “different system.” Id.
Yet Jutrowski neither asked follow-up questions at that point,11

11
Jutrowski’s counsel did not seek to clarify, for
example, whether Biro’s dashcam was programmed at the time
of the incident to automatically record upon activation of
emergency lights or that was only a more recent development;

20
nor sought afterwards to confirm the existence of the video
through “a request for inspection pursuant to Federal Rule of
Civil Procedure 34(a)” or other discovery devices. Jutrowski,
2017 WL 1395474, at *5. Having failed to establish the
existence of the video, Jutrowski necessarily failed to show it
was “actual[ly] suppress[ed].” Bull, 665 F.3d at 73. Thus,
whatever inferences a reasonable jury might draw from the
absence of this dashcam footage at trial, see infra Section III.B,
the District Court’s refusal to draw an adverse inference at
summary judgment was not an abuse of discretion.

The upshot is a record insufficient for any reasonable
jury to identify which, if any,12 of the Individual Defendants

whether there were circumstances in which the dashcam would
not automatically record with the lights activated; whether it
recorded with the lights activated at other stops that day; or
whether he had filed any report concerning a malfunction. Nor
does the record on appeal reflect any interrogatories or requests
for admission to this effect. Moreover, we have held that “[n]o
unfavorable inference” is warranted “when the circumstances
indicate” that the failure to turn over the relevant evidence is
“otherwise properly accounted for,” Brewer, 72 F.3d at 334,
and Biro “accounted for” his failure to manually record the
events, testifying that he “wasn’t thinking” about “go[ing] back
to [his] car to hit a button” and that he was not required to do
so because he initially considered the incident only as a motor
vehicle accident. App. 396.
12
The third State Trooper in the immediate vicinity
when Jutrowski was being arrested was not named as a
defendant.

21
used excessive force. Jutrowski does not contend that all them
kicked him, only that one did; he does not purport to raise a
dispute about the extent of each officer’s participation, but
rather the possibility of it; and what he tenders to fill the
evidentiary gap—an adverse inference to be drawn from the
absence of a dashcam video—itself lacks support in the record.
Laid bare, Jutrowski’s argument is that “an issue of material
fact as to the identity of the Appellee that kicked,” Appellant’s
Br. 13, is sufficient to reach a jury, and even if it is not under
Howell, Sharrar, and Smith, it should be. But in view of those
cases, the District Court correctly concluded that all
Defendants were entitled to summary judgment on Count I of
the complaint. And, though we share the concern expressed by
the Seventh Circuit in Colbert that our holding could
“effectively immunize” perpetrators of constitutional
violations who successfully “prevent[] a plaintiff from
observing the person responsible for” the harm, 851 F.3d at
657–78, ours is not to break from controlling Circuit
precedent.13

As the Colbert court also observed, however, there may
be other “avenue[s] for relief,” like a conspiracy claim, that
“sufficiently construct[] the necessary causal connection
between the official and some wrongdoing, regardless of

13
“[I]t is the tradition of this court that the holding of a
panel in a precedential opinion is binding on subsequent
panels,” Joyce v. Maersk Line Ltd, 876 F.3d 502, 508 (2017)
(en banc), and we are not free to overrule a prior precedential
opinion absent en banc hearing, see Reilly v. City of
Harrisburg, 858 F.3d 173, 177 (3d Cir. 2017); 3d Cir. I.O.P.
9.1.

22
whether the plaintiff was able to observe” the constitutional
violation. See Colbert, 851 F.3d at 658. It is to such a claim
that we now turn.

B. The Conspiracy Claims Against the Individual
Defendants

In his complaint, Jutrowski alleges both a conspiracy to
violate his federal civil rights, in violation of § 1983 (Count V),
and a conspiracy to violate his state civil rights, in violation of
New Jersey law (Count VI). Tracking each other nearly
verbatim, each of those Counts pleads two distinct conspiracies
among the Individual Defendants: one before he was kicked,
to arrest him using excessive force, and another after the fact,
to cover up the use of that force.14 We agree with the District
Court that Jutrowski did not proffer sufficient evidence to
create a triable issue of fact as to whether the officers “reached

14
Unlike in a criminal indictment, where charging
multiple conspiracies in the same count is forbidden by the
doctrine of duplicity, U.S. v. Morrow, 717 F.3d 800, 804 (3d
Cir. 1983), multiple conspiracies may be charged in a single
count of a civil complaint. See, e.g., Hampton v. Hanrahan,
600 F.2d 600, 621, 627 n.27 (7th Cir. 1979), rev’d in part on
other grounds by Hanrahan v. Hampton, 466 U.S. 754 (1980).
That is because, in the civil context, “[f]ederal pleading rules
call for ‘a short and plain statement of the claim showing that
the pleader is entitled to relief,’ Fed. Rule Civ. Proc. 8(a)(2);
they do not countenance dismissal of a complaint for imperfect
statement of the legal theory supporting the claim asserted.”
Johnson v. City of Shelby, Miss., 135 S. Ct. 346, 346 (2014).
Jutrowski’s conspiracy claims meet this standard.

23
an[y] illicit agreement prior to the alleged kick.” Jutrowski,
2017 WL 1395474, at *8. For the reasons explained below,
however, we cannot agree that he failed to raise a fact issue
concerning “a conspiracy . . . to violate [his] constitutional
rights through after-the-fact evidence.” Id.

i. Requirements to Establish a § 1983
Conspiracy

To prevail on a conspiracy claim under § 1983, a
plaintiff must prove that persons acting under color of state law
“reached an understanding” to deprive him of his constitutional
rights. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150-52
(1970).15 Such rights include, of course, those protected by the

15
The elements of a claim of conspiracy to violate
federal civil rights are that “(1) two or more persons conspire
to deprive any person of [constitutional rights]; (2) one or more
of the conspirators performs . . . any overt act in furtherance of
the conspiracy; and (3) that overt act injures the plaintiff in his
person or property or deprives the plaintiff of any right or
privilege of a citizen of the United States,” with the added gloss
under § 1983 that “the conspirators act ‘under the color of state
law.’” Barnes Foundation v. Township of Lower Merion, 242
F.3d 151, 162 (3d Cir. 2001) (quoting 42 U.S.C. § 1983).
Under New Jersey law, the elements of a claim of conspiracy
to violate civil rights are essentially the same. See Banco
Popular N.A. v. Gandi 184 N.J. 161, 177-78 (2005) (“In New
Jersey . . . the principal element of [civil conspiracy] is
agreement between parties to inflict wrong against or injury
upon another, and an overt act that results in damage.”)
(citations omitted). Thus, although we focus our discussion
below on Jutrowski’s § 1983 conspiracy claims, their

24
Due Process Clause of the Fourteenth Amendment, such as the
“right to be heard in an impartial forum,” Great W. Mining &
Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 161 (3d Cir.
2010), and the “right of access to the courts,” Monroe v. Beard,
536 F.3d 198, 205 (3d Cir. 2008).16 Those rights “assure[] that
no person will be denied the opportunity to present to the
judiciary allegations concerning violations of . . . constitutional
rights.” Wolff v. McDonnell, 418 U.S. 539, 579 (1974).

Although deprivations of the right of access to the
courts arise most often in the prison context,17 see, e.g.,
Peterkin v. Jeffes, 855 F.2d 1021, 1036 (3d Cir. 1988), this
right is also denied when law enforcement officers conspire to

resolution also dictates our disposition of his state conspiracy
claims.
16
See Marshall v. Jerrico, Inc., 446 U.S. 238, 242
(1980) (observing that “[t]he Due Process Clause entitles a
person to an impartial and disinterested tribunal in both civil
and criminal cases”); Bounds v. Smith, 430 U.S. 817, 828
(1977) (describing access to the courts as a “fundamental
constitutional right”).
17
The right of access to the courts is sourced from both
“the First and Fourteenth Amendments,” Monroe, 536 F.3d at
205, and is typically framed as a due process right in the inmate
context, see id. at 209, but in other contexts as “an aspect of the
First Amendment right to petition the Government for redress
of grievances,” Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S.
731, 741 (1983); but see Pennsylvania v. Finley, 481 U.S. 551,
557 (1987) (describing the right to “meaningful access” to the
courts as an “equal protection guarantee”).

25
cover up constitutional violations, see, e.g., Colbert, 851 F.3d
at 657–58 (holding that the plaintiff could allege under § 1983
that “the named officers participated in something akin to a
‘conspiracy of silence among the officers’ in which defendants
refuse to disclose which of their number has injured the
plaintiff”). A “conspiracy of silence” among officers is
actionable as a § 1983 conspiracy because the coordinated
officer conduct “impede[s] an individual’s access to courts ”
and renders “hollow” a victim’s right to redress in a court of
law. Vasquez v. Hernandez, 60 F.3d 325, 328–29 (7th Cir.
1995) (“[W]hen police officers conceal or obscure important
facts about a crime from its victims rendering hollow the right
to seek redress, constitutional rights are undoubtedly
abridged.”); see also Swiggett v. Upper Merion Twp., No. 08-
2604, 2008 WL 4916039, at *4 (E.D. Pa. Nov. 17, 2008)
(“[C]ourts have found that concealing a constitutional
violation, including use of excessive force, does not amount to
a separate constitutional violation unless the victim of the
concealment was deprived of his right of access to the
courts.”).

After a plaintiff establishes that the object of the
conspiracy was the deprivation of a federally protected right,
“the rule is clear that” the plaintiff “must provide some factual
basis to support the existence of the elements of a conspiracy:
agreement and concerted action.” Capogrosso v. Supreme
Court of N.J., 588 F.3d 180, 184–85 (3d Cir. 2009) (citing
Crabtree v. Muchmore, 904 F.2d 1475, 1481 (10th Cir. 1990)).
To show agreement, he must demonstrate that “the state actors
named as defendants in the[] complaint somehow reached an
understanding to deny [the plaintiff] his rights,” Kost v.
Kozakiewicz, 1 F.3d 176, 185 (3d Cir. 1993), and in the absence
of direct proof, that “meeting of the minds” or “understanding

26
or agreement to conspire” can be “infer[red]” from
circumstantial evidence, Startzell v. City of Philadelphia, 533
F.3d 183, 205 (3d Cir. 2008). Such circumstantial evidence
may include that the alleged conspirators “did or said
something . . . to create an understanding,” “the approximate
time when the agreement was made, the specific parties to the
agreement[,] the period of the conspiracy, or the object of the
conspiracy.” Great W. Mining, 615 F.3d at 178–79 (citations
omitted). And in the context of an alleged conspiracy among
police officers, it may manifest as “conversations” between
officers about the incident, “allegedly distorted” stories that
“emerged,” an “awareness of conflicting stories” and
“irregularities in the series of official investigations” into the
incident. Hampton v. Hanrahan, 600 F.2d 600, 627–28 (7th
Cir. 1979), rev’d in part on other grounds by Hanrahan v.
Hampton, 466 U.S. 754 (1980).

Because “inferring mental state from circumstantial
evidence is among the chief tasks of factfinders,” Kedra v.
Schroeter, 876 F.3d 424, 444 (3d Cir. 2017) (citing United
States v. Wright, 665 F.3d 560, 569 (3d. Cir. 2012)), an
allegation of conspiracy can only be overcome at summary
judgment when “the moving parties’ submissions foreclose[]
the possibility of the existence of certain facts from which ‘it
would be open to a jury . . . to infer from the circumstances’
that there had been a meeting of the minds,” Anderson, 477
U.S. at 249 (citing Adickes, 398 U.S. 144).

ii. The Conspiracy Claims Against the
Individual Defendants

We dispense quickly with Jutrowski’s argument that he
sufficiently established an agreement among the Individual

27
Defendants, before the fact, to use excessive force. While this
claim meets the threshold requirement that the alleged
conspiracy had the goal of violating a constitutional right,
Jutrowski’s assertion of a “common plan” among the officers,
based on (1) an alleged “reloc[ation] [of] the ambulances so
that EMT personnel would not be able to witness the[] attack,”
and (2) the officers “simultaneously grabbing” him to take him
down, is not supported by any specific facts in the record. App.
276.18 To survive summary judgment, however, “specific facts
showing that there is a genuine issue for trial” are precisely
what a plaintiff must show, and “[b]are assertions, conclusory
allegations, or suspicions” will not suffice. D.E., 765 F.3d at
268–69 (citations omitted). The District Court therefore did not

18
With respect to the moving of the ambulances, the
record is devoid of discovery from EMT personnel, and neither
Jutrowski’s summary judgment opposition below nor his brief
on appeal provide any record support for his allegations. Nor
does the record support that the officers “simultaneously
grabb[ed]” him to take him down. App. 276. Franchino, the
officer who effectuated the take-down, testified that he was the
“only . . . [one who] took [Jutrowski] to the ground,” App. 437,
and that not all of the officer-defendants were even near
Jutrowski when he executed the “front leg sweep” maneuver,
App. 424. The testimony of other officers was consistent with
that account. See, e.g., App. 396–97 (Roemmele testifying that
he “was walking back” to his vehicle when Jutrowski was
initially apprehended). Further, the deposition testimony
shows that the takedown “happened instantly,” App. 335, after
Jutrowski flailed his arm, making it implausible that there was
time for a proverbial “meeting of the minds” before he was
kicked moments later.

28
err in granting summary judgment on Counts V and VI to the
extent they allege before-the-fact conspiracies.

The record paints a different picture, however, for
Jutrowski’s claims of a conspiracy after the fact. As a threshold
matter, we reject Defendants’ argument that Jutrowski failed to
assert a cognizable conspiratorial objective because “[t]he only
injur[y] [he] alleges is . . . to his eye” so that post-injury
“actions with regard to [the officers’] paperwork and grand
jury testimony cannot possibly form the basis of a conspiracy
that led to [his] injuries.” State Troopers’ Br. 25. The “injury”
Jutrowski asserts with respect to this conspiracy is not the
application of excessive force but the denial of “access to the
courts.” Monroe, 536 F.3d at 205. And drawing all reasonable
inferences, as we must, in Jutrowski’s favor, we cannot agree
with the District Court that there is insufficient evidence of
“collu[sion]” among “the officers from Riverdale and the State
Police” to deprive him of that access. Jutrowski, 2017 WL
1395474, at *8.

For starters, material omissions in contemporaneous
police reports can reasonably be seen by a jury as evidence that
the officers “agreed to abide by [a] claim” about what
happened and “agreed to represent [it] falsely,” Bell v. City of
Milwaukee, 746 F.2d 1205, 1256 (7th Cir. 1984), rev’d on
other grounds by Russ v. Watts, 413 F.3d 783 (7th Cir. 2005),
and omissions specifically as to the infliction of an injury or
“reference to the use of force” that indisputably occurred
during an arrest “can be as dishonest as an outright lie,” United
States v. Seymour, 472 F.3d 969, 970 (7th Cir. 2007) (finding
the omission, in an arrest report, regarding the use of force
against a jaywalker to be material because “[t]he test is whether
what is omitted is something the intended reader would have

29
expected to see included if it had occurred . . .”). Here, none
of the reports by Heimbach, Franchino or Roemmele19
indicated that Jutrowski suffered significant injuries during the
course of his arrest, yet several of the officers admitted in their
depositions that Jutrowski’s injuries noticeably worsened
during his apprehension.20 Moreover, notwithstanding the
District Court’s reasonable rejection of an adverse spoliation
inference on the summary judgment record, a reasonable jury
considering the inconsistent accounts of the vantage point from
Biro’s vehicle21 and the absence of Biro’s dashcam footage

19
It appears that Biro did not prepare a separate report,
as the one report produced by the Riverdale Police Department
was prepared by Roemmele. The State Troopers produced
three reports: a Supplemental Investigation Report and
Reportable Use of Force report, both prepared by Franchino;
and a Drinking Driving Report, prepared by Heimbach,
20
See App. 338 (Heimbach testifying that after his
arrest, Jutrowski’s “eye was a lot worse than the initial
laceration”); App. 368, 380 (Roemmele testifying that before
arrest, Jutrowski’s injury was a “[s]mall laceration; nothing
major” but that afterwards his face looked “different” and it
was “[s]wollen [with] more abrasions”); App. 402 (Biro
testifying that after being taken to the ground, “there was blood
on [Jutrowski’s] face, more than what he had”); App. 429
(Franchino testifying that he does not “recall looking at
[Jutrowski’s] face” but that he “would hope [to] notice[]” if the
injuries had worsened).
21
Biro testified in his deposition that he “kn[e]w [he]
was either one or two cars behind” Jutrowski’s disabled SUV.
App. 394. However, testimony from Heimbach, who arrived

30
when “all of the [other] automobiles on scene recorded the
encounter and all recording[s] but Biro’s were produced,”
Appellant’s Br. 23, might infer evidence of a cover-up.22

Jutrowski’s after-the-fact conspiracy allegations also
find support in the time that was available to reach an
agreement, see Great W. Mining, 615 F.3d at 178, and evidence
of “conversations” between officers before the filing of reports,
Hampton, 600 F.2d at 627. That is, there was undoubtedly time
in the unhurried period after the incident and before the
finalization of reports and deposition appearances for a
“meeting of the minds,” Startzell, 533 F.3d at 205, and
Heimbach acknowledged at his deposition that he “discussed”
Jutrowski’s case with Franchino and the third trooper involved
in the arrest “while . . . going over the reports,” and that “prior
to writing the narrative report,” he “discussed [with them]
everything that happened” concerning “the scene and the arrest
and subduing of Mr. Jutrowski” in order to straighten out the
“sequence of events,” App. 341. Franchino also testified that
he “remember[ed] speaking about” Jutrowski’s injuries with
Heimbach within a few weeks of the incident, App. 429, and

on the scene after Biro, as well as dashcam footage from
Heimbach’s vehicle indicates that Biro was parked behind
Jutrowski upon arrival.
22
Decisions regarding the admissibility and admission
of such evidence rest in the sound discretion of the District
Court. See U.S. v. Finley, 726 F.3d 483, 491 (3d Cir. 2013)
(noting that “[a] district court is generally afforded broad
discretion on evidentiary rulings”).

31
that before submitting his report, it was “possible” that he
discussed the “facts of the case” with Heimbach, App. 431.

Moreover, what emerged from these conversations
might well be viewed by a reasonable jury as “irregularities”
and “distorted” or “conflicting” accounts that suggest “a
concerted effort to suppress facts.” Hampton, 600 F.2d at 628.
For example, Roemmele’s report, the lone Riverdale Police
report as none was produced by Biro, makes reference to the
presence of State Troopers, but it does not mention the
presence of Biro, who not only participated in the arrest but
was also Roemmele’s supervisor. Heimbach’s report omits any
reference to the use of excessive force, although he does not
dispute that someone kicked Jutrowski and that his “sole
focus” for “the entire time” was on Jutrowski’s head, so that
“if any[one] . . . struck [Jutrowski] in the face, [he] would
[have] know[n].” App. 344. For his part, Trooper Franchino
testified that he was the officer “closest to [Jutrowski’s] head,”
and was “less than three feet” away when Jutrowski was taken
to the ground, App. 438, but professed that he did not ever
“look[] at [Jutrowski’s] face,” App. 432, and that he checked
the box for “moderate injury” on his use of force report only
because “possib[ly] someone told” him to do it, App. 434. The
Riverdale officers, who were also in Jutrowski’s immediate
vicinity, likewise do not contest that a kick occurred, but
Roemmele made no reference to it in the one report produced
by the Riverdale Police Department, and both officers contend
that they did not see it. Furthermore, all of this may be
considered against the backdrop of the other evidence in the
record on summary judgment, including the report of a medical
expert, who averred that Jutrowski’s injury most likely resulted
from “either a kick or punch of significant force.” App. 263.

32
 In short, what Jutrowski put forward concerning alleged
federal and state conspiracies to deprive him of access to the
courts was sufficient to create a genuine issue of material fact.
And he did so, consistent with Smith, for each of the Individual
Defendants. That is, Jutrowski alleged that “all” of “Defendant
officers . . . did act together and in concert” to conspire to
violate his civil rights, App. 269, that all “[t]he police officers”
are implicated in a cover-up, App. 493, and that each of them
“perjured themselves,” App. 492, in “covering up” the use of
excessive force and “protecting each other,” App. 495.
Because he adduced evidence to support those allegations
“such that a reasonable jury could return a verdict” in his favor,
Anderson, 477 U.S. at 248, we will reverse District Court’s
entry of summary judgment on Counts V and VI to the extent
they allege after-the-fact conspiracies, and we will remand for
further proceedings on those claims against the Individual
Defendants.

IV. Conclusion

For the foregoing reasons, we will affirm in part and
reverse in part and will remand for proceedings consistent with
this opinion.

33